February 26 2014 Should employee's criminal past be taken into consideration in decision to hire? S Horowitz & Co | Employment & Immigration - Israel Employment & Immigration IntroductionBalance of interestsCommentIntroductionA regional marketer at a non-profit lottery organisation submitted his candidacy for the same position in a new tender published by the lottery. However, his candidacy was rejected after it became known that he was being investigated on suspicion of bribery in connection with a previous tender published by the lottery. While his candidacy was being considered by the committee, the candidate received an unofficial notice that the case against him had been closed due to lack of evidence. Nevertheless, his candidacy was rejected.The candidate appealed to the courts, hoping that the lottery's decision would be overruled, but his claim was dismissed. The Supreme Court confirmed the decision,(1) holding that the lottery had rightfully rejected his candidacy. The court reasoned that the fact that a criminal investigation was being conducted on suspicion of dishonest acts was a relevant fact that the holder of the tender could (and perhaps even should) take into consideration when choosing the most suitable candidate for the position. The court argued that the fact that the investigation was pending and no decision had yet been taken to file an indictment did not render such suspicion irrelevant.Balance of interestsOn its face, this ruling seems to be simple and obvious, since an employer clearly has a legitimate interest in hiring persons with a clean record, instead of taking the risk of hiring those with a criminal record. When forced to choose between two candidates with equal qualifications, except for the fact that one has a criminal record and the other does not, a rational employer would most likely prefer the latter candidate.However, while it is clear that in a moral society, criminals should be punished and others deterred from committing crimes, it is also of paramount importance that a repentant criminal who has paid his or her debt to society is not pursued indefinitely, provided that he or she does not commit another crime within the period prescribed by law. If a repentant criminal is obliged to reveal his or her criminal history to every potential employer, the chances of rehabilitation are slim to none.Therefore, the challenge is to strike the correct balance between an employer's legitimate interests in protecting its business from candidates who are convicted criminals and society's legitimate interests in facilitating the rehabilitation of repentant criminals.The Israeli legislature has attempted to balance these two interests in the Criminal Register and Rule of the Repentant Law 1981. The law:lays down the rules for administering the Criminal Register;classifies the types of data that will be registered in the register;sets out the terms for limiting and striking out criminal offences therefrom;sets out parameters for protecting the data stored in the register and restricting access thereto; andprovides a defined list of entities that are entitled to obtain data therefrom.The law prohibits any party that is not included in the list of entitled entities from obtaining or demanding, directly or indirectly, data from the register and defines the contravention of this prohibition as a crime. The law also explicitly prohibits the use of data stored in the Criminal Register by any party that is not entitled (according to the law) to obtain such data in making decisions concerning the employment of a data subject. In addition, the law provides that the consent of the data subject does not entitle another party to obtain such data from the register. Under the law, only certain entities are entitled to obtain data from the register. The vast majority of employers, including the lottery, are not included in this list.Before the Supreme Court ruling, there were strong grounds in support of the claim that the prohibition under the law on obtaining or demanding data from the Criminal Register, whether directly or indirectly, included a prohibition on asking a candidate questions concerning his or her criminal history and any pending criminal proceedings or investigations against him or her.However, in the case at hand the Supreme Court ruled otherwise. It stated that the law does not prohibit an employer (in this case the publisher of the tender) from asking a candidate (in this case a person who has presented his candidacy for the position advertised in the tender) questions regarding his or her criminal past or any pending criminal proceedings or investigations. However, such questions must relate to crimes that are relevant to the position for which the candidate has submitted his or her candidacy, and the prospective employer must notify the candidate that he or she need not divulge information relating to crimes in respect of which the limitation period has expired, crimes that have been struck out or investigations that ended with the closing of the file.CommentFor criminals who have served their sentence, this ruling has far-reaching consequences: absolution now begins only once the limitation period with respect to the relevant crime has expired or the crime has been struck out. Until then, employers may use information relating to the crime in considering their candidacy for employment or engagement.It seems unlikely that this result complies with the legislature's intentions. As noted above, the legislature explicitly prohibits a party that is not entitled to obtain data from the Criminal Register from obtaining or receiving, directly or indirectly, such data from the register or from making use thereof in order to make an employment decision. The legislature further provides that the consent of the data subject does not make the obtaining or use of such data lawful.What good is the prohibition if, according to the Supreme Court, an employer may ask a candidate questions directly relating to such data and may use such data in making an employment decision and the candidate must reply and supply the information? This ruling, which enables the circumvention of the prohibition on obtaining data from the register, was arguably handed down without a sufficiently comprehensive discussion as to how the new ruling complies with the legislature's position, as reflected in the prohibitions set out in the law.As a result, it came as no surprise that the Supreme Court decided to re-hear this matter by way of a further hearing. Such a hearing is an extraordinary proceeding taken in exceptional cases and reserved for unusual legal issues. This was an appropriate case in which to hold such a hearing, since it deals with an issue of paramount social and human sensitivity and has far-reaching consequences for all elements of society, in particular suspects and criminals who are undergoing rehabilitation and their potential employers.However, this further hearing on the merits did not take place and was rejected on other grounds. Therefore, the above ruling is still in force, but it is hoped that it will be reconsidered at the earliest possible opportunity.For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email ([email protected]). The S Horowitz & Co website can be accessed at www.s-horowitz.com.Endnotes(1) Dayan v Mifal Hapais (Civil Appeal 8189/11, February 21 2013); Dayan v Mifal Hapais (Further Civil Hearing 1840/13, December 22 2013).